대규모유통업법에 있어서의 ‘거래상 지위’의 판단기준 - 모바일 커머스 업종을 중심으로 -

Abstract

Article 23(1)(iv) of Korean Monopoly Regulation and Fair Trade Act(MRFTA) and its Presidential Decree [Table 1-2] No. 6 prohibits the abuse of superior bargaining position as a type of unfair trade practices, and Article 3 of Korean Fair Trade Act in Large-Scaled Distribution Businesses also prohibits for the large-scaled distributors to abuse their superior bargaining position to suppliers and leaseholders. The Korea Fair Trade Commission(FTC) and the Supreme Court have shown the criteria on the abuse of superior bargaining position including the compulsory buying, coercing undue benefits from trading party, forcing sales target, giving undue disadvantages, and intervening in management. This article initially reviews the differences of two acts, the history of these focusing on the Japanese Act, and how to adapt the criteria of MRFTA to the field of distribution businesses. Our distribution business structures are rapidly changing these days, and we have to concentrate on the characteristics of the newly emerged businesses like a mobile commerce etc. Otherwise, we could easily make mistakes in applying the criteria to decide whether an undertaker abuses its superior bargaining position or not. This article argues that we have to pay attention to consider the characteristics of every distribution business including the mobile commerce; the structure of distribution business, the actual condition of consumption of the consumer, the gap of the ability in business, the independence of the transaction between two parties, the characteristics of the goods and services, and the position of the undertakings etc.